Traders & General Ins. Co. v. Scogin
| Decision Date | 24 December 1940 |
| Docket Number | No. 3713.,3713. |
| Citation | 146 S.W.2d 1014 |
| Court | Texas Court of Appeals |
| Parties | TRADERS & GENERAL INS. CO. v. SCOGIN. |
Appeal from District Court, Angelina County; C. E. Brazil, Judge.
Suit by W. L. Scogin against the Traders & General Insurance Company to set aside an award of the Industrial Accident Board and to recover compensation. From a judgment for plaintiff, the defendant appeals.
Judgment affirmed.
K. W. Denman, of Lufkin, Lightfoot, Robertson & Gano, of Fort Worth, for appellant.
R. C. Musslewhite and Curtis W. Fenley, both of Lufkin, for appellee.
O'QUINN, Justice.
This suit was filed by appellee in the district court of Angelina County, Texas, against appellant to set aside an award of the Industrial Accident Board of the State of Texas, and to recover compensation. Appellant answered by general demurrer, general denial, and by a special answer duly verified.
The case was tried to a jury upon special issues on their answers to which judgment was rendered in favor of appellee setting aside the award of the Board, and granting appellee compensation as for total and permanent disability for 401 weeks at the rate of $8.32 per week, the compensation to be paid in a lump sum with proper and legal discount. Motion for a new trial was overruled, and we have the case on appeal.
Appellant's first proposition complains of what it insists as an improper submission of "partial incapacity." Special issue No. 4 inquired whether appellee sustained total incapacity by reason of the injury he had suffered, which the jury answered "Yes." Special issue No. 8 was: The jury answered "Yes." Appellant objected to this issue because "the question of partial incapacity herein which is a defensive issue is limited herein in its language to a finding as to whether or not the plaintiff sustained only a partial incapacity and which is the plaintiff's issue and not this defendant's issue and nowhere in this court's main charge is this defendant's issue thereon submitted and * * * in that connection said defendant requests the court to properly amend said special issue and to add other special issues to cover the question of this defendant's issue thereon."
Special issue No. 8 affirmatively and unconditionally submitted to the jury the issue of "partial incapacity." The jury's answer "Yes" to this issue was that appellee had not sustained only partial incapacity by reason of his injury, and that he would not sustain only partial incapacity by reason of his said injury. This was a complete answer that appellee had not sustained partial incapacity as a result of his injury. The answer to special issue 8 was not conditioned on the answer the jury had made to any other issue. Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W. 2d 314, 317, 5th paragraph. The use of the word "only" in the issue did not make the submission conditional. United Employers Casualty Co. v. Knight, Tex.Civ.App., 139 S.W.2d 613, 615. Furthermore, if it could be said (which on the face of the record it cannot) that the court had wholly failed to charge on the issue of "partial incapacity," then before appellant could complain of the omission, it would have to prepare a proper issue covering this question and present it to the court with request for submission, which it did not do. Texas & N. O. Ry. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649. The proposition is overruled.
The second, third, fourth, fifth and sixth propositions are presented grouped. They relate to asserted error (2nd) in the court not affirmatively and unconditionally submitting to the jury special issues as to "primary defensive issue of partial incapacity"; (3rd) in conditionally submitting "defen...
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...Underwriters Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880, Syl. 11, affirmed 138 Tex. 128, 157 S.W.2d 356; Traders & Gen. Ins. Co. v. Scogin, Tex.Civ.App., 146 S.W.2d 1014, Syl. 5; Western Union Telegraph Co. v. Hinson, Tex.Civ.app., 222 S.W.2d 636, Syl. 8. However, because of our libe......
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...Underwriters Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880, affirmed 138 Tex. 128, 157 S.W.2d 356; and Traders & General Ins. Co. v. Scogin, Tex.Civ.App., 146 S.W.2d 1014. However because of our policy of liberally construing the rules with reference to briefing and because we have elim......
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